Texas redistricting fight: Lawmakers await ruling as battle nears end

AUSTIN — The two-year Texas redistricting battle could soon enter its final phase, and whether the outcome is welcome news for the Republican-controlled Legislature is anyone’s guess.

The U.S. Supreme Court might decide as early as this week whether to accept the state’s request to overturn a lower court ruling unfavorable to the contentious redistricting plan GOP lawmakers approved in the 2011 session.

On Aug. 28, a federal court in Washington denied what is known as “preclearance” to the redrawn Texas maps on grounds they violate the Voting Rights Act, the 1965 landmark federal legislation aimed at protecting the right of racial minorities to elect candidates of their choice.

Due to their long history of racial discrimination, Texas and eight other (mostly Southern) states, plus areas of seven others, must have their redistricting plans and new voting laws approved by the U.S. Department of Justice or a federal court. Because of numerous legal fights with the Obama administration, Texas Attorney General Greg Abbott — the Legislature’s lawyer — bypassed the Justice Department and sought the approval of the Washington court. By a 2-1 vote, the lower court denied the preclearance on grounds that the state’s legislative and congressional maps were drawn with the intent to discriminate against minority voters.

Calling the ruling a “flawed decision,” Abbott then asked the high court to overturn it.

Abbott also asked the Supreme Court to hear the state’s arguments that Section 5 of the Voting Rights Act — the provision that requires the states to seek preclearance — be declared unconstitutional.

If a majority of the nine Justices agree to give the state a hearing on all or part of the lower court’s ruling, the legal battle might continue for at least another month — after the court rules on a related Alabama case — or end by no later than June 28, the last day of the court’s 2012-13 session.

If the court’s dismisses Abbott’s appeal, it likely will be seen as a setback for his office and for lawmakers.

Tough to predict

Although state lawmakers said it is hard to predict Supreme Court decisions, they are cautiously optimistic their respective sides will prevail.

Sen. Kel Seliger said he thinks the court will accept Abbott’s appeal.

Seliger, R-Amarillo, is a central figure in the legal battle because — as chairman of the Senate Redistricting Committee in the 2011 session — he and his House counterpart, now retired Rep. Burt Solomons, R-Carrollton, drew the maps.

“When you go to court, if you think you are right you litigate to the best of your ability and you accept the victories and the setbacks,” Seliger said. “I am cautiously optimistic because I think we have a very good case and we’re well represented by the attorney general and his designees.”

State Rep. John Smithee — a veteran of five redistricting battles, including the congressional redistricting fight of 2003 that drew national and international attention — also is optimistic the 2011 plan survives the legal challenges.

“I feel reasonably comfortable that the maps will be approved by the Supreme Court, possibly with minor adjustments,” said Smithee. “I wouldn’t expect it to be a unanimous ruling, but the Supreme Court seems to be prone to allow the will of the legislatures to prevail.”

Democratic legislators who are major players in the two-year battle said they are just as optimistic the high court will reject Abbott’s appeal.

“Nobody can ever predict with a crystal ball what the Supreme Court of the United States is going to do,” said San Antonio Rep. Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus, a plaintiff in the redistricting lawsuit.

“Having said that, Texas has presented a very compelling reason why you need the Voting Rights Act,” Martinez Fischer said. “I want to remind you that the federal judges that presided over the trial in Washington, D.C., just didn’t find minor violations of the Voting Rights Act. They found intentional discrimination, the very type of discrimination that the Voting Rights Act of 1965 was enacted for.”

During the 2011 session, Martinez Fischer and other Democrats strongly objected to the maps. They argued Selgier and Solomons did not create enough minority-opportunity districts, even though non-whites accounted for nearly 90 percent of the population growth that made it possible for Texas to gain four new congressional districts.

Sen. Wendy Davis, D-Fort Worth, said she also feels optimistic about the Supreme Court’s decision.

“I strongly believe that the court will continue to uphold the voting rights of the district I represent and of all voters of Texas,” Davis said.

Also a plaintiff, Davis was re-elected on Nov. 6 even though her Senate District 10 was the most drastically redrawn in the Texas Senate — to make it easier for a Republican to unseat her, according to testimony in a second federal court in San Antonio.

The aftermath

Aside from the cautious optimism both sides express, the Supreme Court’s ruling could also impact the boundaries of some legislative districts. House District 68 — which freshman Drew Springer, R-Muenster, represents — could be among the most impacted.

The rural district stretches from Springer’s home county of Cooke in the Denton area, to as far west as Wheeler County in the Texas Panhandle and as far south as Fisher County in the South Plains.

“With the judges’ map, I believe I lost 10 of my 22 counties and I picked up four other counties,” Springer said in reference to the maps the San Antonio court drew last year.

Springer sees two choices for the Legislature if the Supreme Court rejects Abbott’s appeal — live with the maps the San Antonio court drew or take on redistricting again.

He would prefer the first option because redoing redistricting would be “a monumental waste of time and money,” he said.

However, what the Supreme Court or the Legislature ultimately decide are out of his control, Springer said.

“I am not losing any sleep,” he said. “If it happens, it happens but I will cross that bridge if, or when, I have to.”